Libby Hoeler: urban legend?
The videos, while "legendary", are clearly not "urban legend": the videos certainly exist, in the form of a 107 mb compilation entitled "The Complete Libby Hoeler Collection.mpg". And yes, she's hot: that part is true. Oh sure, it's web-cam stuff, though, in my opinion, high-resolution kills eroticism: the erotic quality improves as more imagination is required. (I think I recall a passage in Jonathan Swift's Gulliver's Travels, where Gulliver is among the giant Brobdinagians and gets up close to a beautiful giant lady's skin, and is repulsed by the massive pores and blemishes.)
No, the myths that surround the video are what strike me as "urban legend". In particular, what struck me as "legendary" was the notion that you can get 12 months, that is, felony jail time, for distributing nude video of your ex-girlfriend.
Unfortunately, after researching the matter, it appears more plausible. There exists in the United States a seemingly unstoppable trend to criminalize all undesireable behavior, including, in this case, the act of disseminating nude pictures of someone without their consent.
Now, don't get me wrong. What could have happened in Libby Hoeler's case, is not that someone got jail time for just publishing the video, but rather, someone got jail time for stealing the video (if, as is sometimes reported, it wasn't Libby's ex-boyfriend but his roommates who uploaded the files to the world.). Theft, of course, is a crime, and misappropriating the .mpg files would violate a whole host of state and federal anti-hacking laws prohibiting access to someone else's computer.
I don't condone stealing people's records of their intimate moments and displaying them for all the world to see, nor do I think an ex-boyfriend who abused a gift like that should escape unpunished. I just don't see why everything has to be made into a crime (just so politicians can pretend they did something about it).
Before I go any farther, let's review. In criminal cases, you can get jail or fines. In civil cases you get money judgments and sometimes equitable relief (injunctions and restraining orders). Criminal law is suppsoed to address conduct which is threat to the peace and security of society as a whole, whereas civil tort law address acts which have harmed particular persons. Clearly, the more appropriate remedies for distributing nude pictures of an ex-girlfriend on the interweb are remedies which protect and compensate the harm to the victim: court orders to stop the behavior, and money to compensate for the harm. A money judgment, if sufficiently large, also has a punitive quality, if you feel such is required in this case. For the victim, jail time for the perpetrator is cold comfort.
Until recently, courts in the United States have dealt with "invasion of privacy" as a matter of civil law.
"Invasion of Privacy" is a well-recognized tort or group of torts, discussed in Professor Prosser's Handbook on Torts, and the American Law Institute's "Restatement of Torts", and therefore fairly uniform from State to State. Wisconsin's statute on the matter follows the usual pattern, and recognizes several different kinds of "invasions" of privacy, including one that fits this case, sometimes called the "intrusion into seclusion" branch of privacy law:
Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed.
Some of you may wonder, where does free speech and the First Amendment come into this? Look closely at that last definition and note the reference to "legitimate public interest". Oh sure, horny guys are "interested" in seeing a college girl masturbate in her dorm room. That kind of interest, however—prurient interest—isn't protected by the First Amendment. Until Elizabeth Heller runs for office (hey, a porn star got elected to the Italian parliament: it could happen) her video is not a matter of legitimate public interest (even if this writeup does get E2 another 800 hits a day).
Note also that acting "unreasonably" or "recklessly" is sufficient to make one liable for this tort (and beat a First Amendment defense). Criminal law requires a stiffer "mens rea" standard, that is, states of mind which are harder to prove, but call for punishment: malice, or intent to harm. Similarly, the First Amendment requires "malice" only when public figures are involved.
So there should be no criminal law making it a felony (12 month sentence) to spread Libby's video around. But there are such laws—or there will be, if Governor Pataki of New York has his way.
In February, 2003, some damn fool introduced a bill in Iowa making "invasion of privacy" a crime, that is, a "serious misdemeanor" (up to a year in jail). 2 Reading the bill, it's clearly limited to voyeurism. It's kinda creepy to take pictures of people in the nude when they don't know about it. It's another thing entirely to publish video that was created knowingly and willingly (albeit not intended for public consumption). This Iowa bill doesn't touch that kind of behavior.
Then, to my utter astonishment, I discover that Governor Pataki of the great state of New York is touting a bill which would not only criminalize video voyeurism, but also make it a serious felony (2-7 years in prison) to "disseminate, distribute, transmit or publish" nude pictures of people without their consent.3 So, at least if Governor Pataki has his way, Libby Hoeler's ex-boyfriend (or her boyfriend's roomates, depending on which story you believe) could be doing some hard time in New York.
The Governor got his law passed and it took effect in August 2003 in the Empire State. The law was named "Stephanie's Law", in recognition of the lobbying of Stephanie Fuller, a Long Island resident, who was secretly videotaped in her bedroom by her landlord. Her landlord hid a tiny video camera in the smoke detector above her bed. He pleaded guilty to a charge of trespassing and received three years probation as well as 280 hours of community service, and was ordered to pay $1,468 in restitution.
For the law, not the Libby video! I'm sure y'all can find that yourself.
1 Wisconsin Invasion of Privacy Statute (WSA 895.50) (excerpts):
(1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:
- (a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;
- (b) Compensatory damages based either on plaintiff's loss or defendant's unjust enrichment; and
(c) A reasonable amount for attorney fees.
(2) In this section, "invasion of privacy" means any of the following:
(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.
(3) The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.
Proposed Iowa criminal invasion of privacy statute:
PAG LIN 1 1 Section 1. NEW SECTION . 729.7 INVASION OF PRIVACY IN
1 2 ONE'S RESIDENCE.
1 3 1. A person who knowingly photographs or films another
1 4 person commits invasion of privacy if all of the following
1 5 apply:
1 6 a. The other person does not have knowledge about and does
1 7 not consent or is unable to consent to being photographed or
1 8 filmed.
1 9 b. The other person has a reasonable expectation of
1 10 privacy and is in the other person's place of residence.
1 11 2. As used in this section, "photographs or films" means
1 12 the making of any photograph, motion picture film, videotape,
1 13 or any other recording or transmission of the image of a
1 14 person.
1 15 3. A person who violates this section commits a serious
1 16 misdemeanor.
1 17 EXPLANATION
1 18 This bill creates a new criminal offense of invasion of
1 19 privacy in one's residence and provides a penalty.
1 20 A person who knowingly photographs or films another person
1 21 commits invasion of privacy under the bill if all of the
1 22 following apply: the other person has a reasonable
1 23 expectation of privacy and the person is in the person's home,
1 24 and the person being photographed or filmed has no knowledge
1 25 about and has not consented to or is unable to consent to
1 26 being photographed or filmed.
1 27 A person who commits invasion of privacy commits a serious
1 28 misdemeanor. A serious misdemeanor is punishable by
1 29 confinement for no more than one year and a fine of at least
1 30 $250 but not more than $1,500.
1 31 LSB 1138HH 80
1 32 jm/cf/24
Press release of Governor Pataki's bill: http://www.state.ny.us/governor/press/year03/feb27_03.htm